Rivera-Rodriguez v. USA
Filing
24
OPINION AND ORDER re 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) (Criminal Number 07-121.) filed by Gabriel Rivera-Rodriguez, 14 REPORT AND RECOMMENDATION, 21 Supplemental Motion. The Court ADOPTS the Report and Recommenti on 14 in full. The § 2255 motion and supplemental motion (ECF Nos. 1, 21) are DISMISSED WITH PREJUDICE. Petitioner is DENIED a COA. The Clerk is instructed to enter judgment accordingly. Signed by Chief Judge Aida M. Delgado-Colon on 3/10/2015.(wm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
GABRIEL RIVERA-RODRIGUEZ,
Petitioner,
Civil No. 11-02262 (ADC)
v.
[Related to Crim. No. 07-00121 (ADC)]
UNITED STATES OF AMERICA,
Respondent.
OPINION AND ORDER
Before the Court is petitioner Gabriel Rivera-Rodríguez’s (“petitioner” or “RiveraRodríguez”) motion to vacate, set aside, or correct sentence, pursuant to 28 U.S.C. § 2255
(“§ 2255 motion”) (ECF No. 1), and U.S. Magistrate Judge Camille L. Vélez-Rivé’s Report and
Recommendation (“R&R”) that the § 2255 motion be denied on its merits. ECF No. 14.
Petitioner claims ineffective assistance of trial and appellate counsel. He alleges that
appellate counsel failed to: (1) argue that his sentence exceeded the statutory maximum
prescribed for the least-serious, single drug for which he was convicted of conspiring to
possess with intent to distribute (“Claim 1”), and (2) argue that the District Court erred in not
applying the “clear and convincing evidence” standard in considering a cross-referenced
murder (“Claim 2”); and that trial counsel failed to: (3) object to a weapons and supervisory
role enhancement at sentencing (“Claim 3”), (4) inform him of a 235 month (19-year) plea offer
(“Claim 4”), and (5) miscalculated the maximum sentence petitioner could receive if he
rejected another 15-year plea offer (“Claim 5”). Id.
Civil No. 11-2262 (ADC)
Page 2
The government opposed petitioner’s § 2255 motion (ECF No. 8), and petitioner filed
a reply to the government’s response (ECF No. 13). The Court referred the § 2255 motion to
Magistrate Judge Vélez-Rivé for a R&R. ECF No. 11. On November 29, 2012, Magistrate
Judge Vélez-Rivé issued the R&R, recommending dismissal of the § 2255 motion on its merits.
ECF No. 14.
On December 20, 2012,1 petitioner objected to Magistrate Judge Vélez-Rivé’s legal
findings, conclusions, and actual recommendation as to Claims 3, 4, and 5, and re-iterated his
initial arguments as to Claims 1 and 2. ECF No. 15. Later, on July 25, 2013, petitioner
submitted a supplemental objection to the R&R. ECF No. 21.
I.
Review of a Magistrate Judge’s Report and Recommendation
A district court may refer pending motions to a Magistrate Judge for a R&R. 28 U.S.C.
§ 636(b)(1)(B); Fed. R. Civ. P. 72(b); D.P.R. Civ. R. 72(a). Any party adversely affected by the
recommendation issued may file written objections within fourteen (14) days of being served
with the R&R. Fed. R. Civ. P. 72(d). A party that files a timely objection is entitled to a de novo
determination of “those portions of the report or specified proposed findings or
recommendations to which specific objection is made.” Sylva v. Culebra Dive Shop, 389 F. Supp.
2d 189, 191-92 (D.P.R. 2005) (citing United States v. Raddatz, 447 U.S. 667, 673 (1980)). “The
district court need not consider frivolous, conclusive, or general objections.” Rivera-García v.
1
Petitioner’s objections, due December 17, 2012, were mailed three days late. See ECF Nos. 14,
15-2. Still, petitioner’s arguments are being considered as if timely.
Civil No. 11-2262 (ADC)
Page 3
United States, No. 06-1004, 2008 WL 3287236, at *1 (D.P.R. Aug. 7, 2008) (citing Battle v. U.S.
Parole Comm'n, 834 F.2d 419 (5th Cir. 1987)). Moreover, to the extent the objections amount
to no more than general or conclusory objections to the R&R, without specifying to which
issues in the report the party is objecting, or where the objections are repetitive of the
arguments already made to the magistrate judge, a de novo review is unwarranted. Id. In
conducting its review, the Court is free to “accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate-judge.” 28 U.S.C. § 636 (a)(b)(1); see also
Templeman v. Cris Craft Corp., 770 F.2d 245, 247 (1st Cir. 1985); Alamo-Rodríguez v. Pfizer
Pharma., Inc., 286 F. Supp. 2d 144, 146 (D.P.R. 2003).
Finally, “[a] district court is under no obligation to discover or articulate new legal
theories for a party challenging a report and recommendation issued by a magistrate judge.”
Santiago v. Canon U.S.A., Inc., 138 F.3d 1, 4 (1st Cir. 1998) (additional citation omitted).
“Instead, the report and recommendation is reviewed by the district judge for clear error.”
Rivera-Garcia, 2008 WL 3287236, at * 1 (citing Camardo v. Gen. Motors Hourly-Rate Employees
Pension Plan, 806 F. Supp. 380, 382 (W.D.N.Y. 1992) (“It is improper for an objecting party to
. . . submit[ ] papers to a district court which are nothing more than a rehashing of the same
arguments and positions taken in the original papers submitted to the Magistrate Judge.
Clearly, parties are not to be afforded a ‘second bite at the apple’ when they file objections to
a R&R.”)).
Civil No. 11-2262 (ADC)
II.
Page 4
Discussion2
Reviewing the Magistrate Judge’s R&R, the Court arrives at the same conclusions as
to all claims, but supplements portions of the findings.
A.
Ineffective Assistance of Appellate Counsel Claims
1.
Claim 1
Petitioner first claims that appeal counsel failed to argue that his sentence exceeded the
statutory maximum prescribed for less than 100 grams of heroin, the least-serious, single drug
in conspiracy for which he was convicted. ECF No. 1-1 at 3-6. Magistrate Judge Vélez-Rivé
found that Claim 1 lacked merit because this Court was not required to sentence petitioner
below the statutory maximum for the least-serious drug, since the jury returned a specific
verdict – rather than a general verdict – as to which drugs and what amount of drugs were
part of the conspiracy. ECF No. 14 at 9-10. The Magistrate Judge reasoned that if appellate
counsel had raised Claim 1 on appeal, it would have been unsuccessful, and appellate counsel
is not required to raise every non-frivolous claim, and, much less, a frivolous claim, on appeal.
Id. at 10.
The Magistrate Judge found that, if the jury had returned a general verdict without
specifying which drugs they had found were part of the conspiracy, the trial court would have
2
Petitioner did not object to the Magistrate Judge’s summation of the procedural background
of his criminal case and subsequent appeal. See ECF No. 14 at 1-3. Therefore, the Court ADOPTS the
same in full, and INCORPORATES IT BY REFERENCE herein.
Civil No. 11-2262 (ADC)
Page 5
been required to sentence petitioner below the statutory maximum for the least punishable
drug in the conspiracy. Id. at 9 (citing United States v. Rhynes, 196 F.3d 207 (4th Cir. 1999)). In
Rivera-Rodríguez’s case, however, the jury returned a specific verdict, finding him guilty of
conspiring to possess with intent to distribute 50 grams or more of cocaine base (crack), less
than 100 grams of heroin, 5 kilograms or more of cocaine, and 100 kilograms or more of
marijuana. See Crim. No. 07-121(ADC), ECF No. 1124. The Court adds that the proper way
to determine a base offense level for a conviction involving several controlled substances, as
in Rivera-Rodríguez’s case, is to use the Drug Equivalency Tables of the Sentencing
Guidelines. See United States Sentencing Commission, Guidelines Manual,§ 2D1.1 (Nov. 2007),
comment. (n.10). This is precisely what the Court described at sentencing: “When you have
different types of drugs you just take those drugs and convert everything to marijuana, and
you make an analysis of what is the base offense level . . . “ See Crim. No. 07-121 (ADC), ECF
No. 1935 at 11. This analysis, however, was unnecessary in Rivera-Rodríguez’s case since the
Court applied the cross-reference, drug-related murder in establishing a base offense level of
43.3
Finding Claim 1 unmeritorious, the Court ADOPTS the Magistrate Judge’s
recommendation as supplemented herein, and DENIES that claim.
3
It should be noted that the Court balanced other factors to sentence Rivera-Rodríguez to 43
years of imprisonment, rather than the statutory maximum penalty of life imprisonment. See Crim. No.
07-121(ADC), ECF No. 1936 at 19-22.
Civil No. 11-2262 (ADC)
2.
Page 6
Claim 2
Petitioner argues that appellate counsel provided ineffective assistance of counsel by
not arguing on appeal that the District Court erred when it failed to apply the “clear and
convincing evidence” standard to a cross-referenced murder. ECF No. 1-1 at 7-11. The
Magistrate Judge first found that a court may establish by a preponderance of the evidence
that there had been a killing that would constitute murder under 18 U.S.C. § 111. See ECF No.
14 at 11 (citing, inter alia, United States v. Reyes-Echevarria, 345 F.3d 1, 7 (1st Cir. 2003)). Next,
the Magistrate Judge determined that there was evidence presented at trial that implicated
Rivera-Rodríguez in the murder. Id. at 11-12.
The Court adds that at petitioner’s sentencing, the Court cited to substantial evidence
that provided a more than adequate basis for attributing a murder to petitioner:
According to the testimony of Carlos Brito-Pacheco, . . .
Defendant Axel Muñiz, . . . along with the Defendant Gabriel
Rivera-Rodríguez, . . . Mr. Carlos Rivera-Moreno, . . . and
Wilbert Arroyo-Rosario, . . . killed Ricardo Haddock-Collazo, .
. . out in the woods of Guayama.
This information was provided by Defendant Axel Muñiz to
Defendant Brito-Pacheco. And, as I mentioned, this was while
acting in furtherance of the conspiracy and while seeking Mr.
Brito’s help in disposing or hiding of the body to either avoid or
delay police detection.
According to the testimony, [Mr. Haddock] was hit with a stick .
. . or a heavy object over the head because he was cooperating
with local authorities providing information regarding the drug
Civil No. 11-2262 (ADC)
Page 7
distribution activities occurring at the Borinquen Ward, Guayama.
This clearly establishes the motives for such murder.
This witness also stated that the victim had been tied and beaten
up. And, as previously mentioned, all circumstances or ways in
which the body was found, the body was dressed, were clearly
depicted by this witness as testifying of his personal observations
when he got to the place, and what had been done and where the
body had been moved to.
Crim. No. 07-121 (ADC), ECF No 1936 at 14-15. The Sentencing Court also found that BritoPacheco’s testimony was corroborated by the testimony of a Puerto Rican police officer from
the homicide division and a forensic pathologist. Id. at 15.
Furthermore, as the Magistrate Judge points out, petitioner has failed to make a
requisite showing of prejudice. ECF No. 14 at 12. “Even if such cross reference murder
guideline was not applied, the amount of drugs attributed to Rivera-Rodríguez . . . would
have still allowed for the sentence imposed . . . , making such a sentencing mistake, if any,
and failure to raise said grounds in the direct appeal to be harmless.” Id. Indeed, the
Sentencing Court made clear, “a life sentence is also warranted based on other applicable
guideline adjustments.” Id. The Court found that a base offense level of 38 could have been
established for 4.5 kilograms of crack cocaine.4 Id. Two points could have been added because
4
The Sentencing Court found petitioner responsible for a total of more than 4.5 kilograms of
crack cocaine, based on testimony of the government’s two cooperating witnesses. Crim. No. 07-121
(ADC), ECF No. 1935 at 32. On appeal, Rivera-Rodríguez argued that his sentence was based on an
unreliable calculation of the quantity of drugs attributable to him. United States v. Rivera-Rodríguez, 617
F.3d 581, 606-07 (1st Cir. 2010). The First Circuit Court of Appeals held that the district court did not
clearly err in relying on a forensic chemist’s estimate of the average weight of a capsule of crack cocaine
to formulate its calculations for sentencing. Id. at 606.
Civil No. 11-2262 (ADC)
Page 8
the distribution occurred in a protected location, and since petitioner possessed weapons, such
as a 9-mm pistol and rifle, another two point enhancement would have been warranted. Id.
at 15-16. Finally, since petitioner was a supervisor of one of the drug points and owner of the
crack cocaine being distributed at Borinquen Ward, at least another two points could have
been added. Id. at 16. “So, technically here, with this type of Offense Level, that would bring
it to an adjusted Offense Level of forty-four, which, in essence, is adjusted once back again to
a forty-three that provides for a life sentence. So, from either perspective, this is what this
Defendant will be facing.” Id. at 17.
Finding Claim 2 lacking in merit, the court ADOPTS the Magistrate Judge’s
recommendation as supplemented herein, and DENIES that claim.
B.
Ineffective Assistance of Trial Counsel Claims
1.
Claim 3
Petitioner argues that trial counsel provided ineffective assistance when he failed to
object to the weapon and supervisory role enhancement at sentencing. ECF No. 1-1 at 12-15.
The Magistrate Judge found that neither a weapons or a supervisor role enhancement were
considered by the Court at the time of sentencing, and thus, the record defies petitioner’s
averments as to Claim 3. ECF No. 14 at 4. Petitioner, himself, concedes that “the record will
reveal that no such enhancements were actually considered in the final calculus at the time of
sentencing.”
ECF No. 15 at 4.
Thus, the Court ADOPTS the Magistrate Judge’s
recommendation as to Claim 3, and DENIES that claim.
Civil No. 11-2262 (ADC)
2.
Page 9
Claim 4
Petitioner claims that trial counsel was ineffective for failing to inform him of a 19-year
plea offer made by the government. ECF No. 2-1 at 3-8. In support of his claim, petitioner
alleges in an affidavit that trial counsel “never relayed [the 19-year] plea offer to me nor did
he offer me any legal advice as to whether or not to accept the plea offer.” ECF No. 2-5 at 2.
He claims that he was unaware of this offer until appellate counsel sent Rivera-Rodríguez a
copy of the case file that contained the 19-year plea offer letter dated October 22, 2007,
indicating that the offer would remain in effect until October 31, 2007. ECF Nos. 2-1 at 5, 2-3.5
Accepting petitioner’s allegations as true, allowing the 19-year plea offer to expire
without advising petitioner or allowing him to consider it constituted ineffective assistance.
See Missouri v. Frye, 132 S. Ct. 1399, 1408 (2012)(“[A]s a general rule, defense counsel has the
duty to communicate formal offers from the prosecution to accept a plea on terms and
conditions that may be favorable to the accused.”). However, petitioner must still establish
prejudice, or “a reasonable probability [he] would have accepted the earlier plea offer had [he]
been afforded effective assistance of counsel.” Id. at 1409. The Magistrate Judge found
petitioner’s “mere averment” that “[h]ad [trial counsel] relayed this plea offer to me and
5
Petitioner also submits a Motion for Extension of Time filed by trial counsel on December 14,
2007, stating that Rivera-Rodríguez had been unable to reasonably consider a plea offer extended on
November 9, 2007. ECF No. 2-4. A further review of the record reveals, however, that the November
9, 2007 plea offer referenced in the motion, was as to another co-defendant, José J. Colón-Bou. See Crim.
No. 07-121 (ADC), ECF Nos. 666, 679. Thus, this evidence is irrelevant to petitioner’s October 22, 2007,
19-year plea offer.
Civil No. 11-2262 (ADC)
Page 10
explained all of the facts to me I would have accepted this plea offer,” ECF No. 2-5 at 3, “is
speculative, at most.” ECF No. 14 at 5. Indeed, the record reflects that petitioner rejected a
later, 15-year plea offer and agreement, and decided to proceed to trial (see Claim 5, infra). It
is not reasonably probable that Rivera-Rodríguez would have accepted an earlier plea offer
for a less-favorable term of 19-years.
Since petitioner has failed to satisfy the prejudice requirement of Strickland, the Court
ADOPTS the Magistrate Judge’s recommendation as supplemented herein, and DENIES
Claim 4.
3.
Claim 5
Petitioner alleges that he was denied his Sixth Amendment right to effective assistance
of counsel by trial counsel’s erroneous advice with regard to a 15-year plea offer. ECF No. 2-1
at 8-12. Petitioner states in his affidavit that “[a]t the start of trial there was a plea offer for 15
years.” ECF No. 8 at 11. Petitioner alleges that he rejected this offer and chose instead to go
to trial because trial counsel had told him that, “at the most if I lost trial I would be a level 38
and a Criminal History I and that based on my criminal history and the fact Judge DelgadoColón was very fair I could expect a sentence of 19 years 7 months if I was found guilty. The
low end of the guidelines.” ECF No. 2-5 at 3. According to petitioner, trial counsel “told me
. . . that I did not have to worry about anything related to the alleged murder of Mr. Haddock
as the evidence would show this.” Id. He claims that if he had known he was facing a life
Civil No. 11-2262 (ADC)
Page 11
sentence or even a 43-year sentence, “and not the guideline sentence [trial counsel] told me
to expect if I was found guilty, I would not have hesitated, and I would have accepted the plea
offer of 15 years.” Id.
For purposes of the instant analysis, even accepting as true petitioner’s allegation that
trial counsel misadvised him as to the applicable sentence, the Magistrate Judge found that
an inaccurate prediction concerning a sentence is not enough, standing alone, to demonstrate
ineffective assistance of counsel. ECF No. 14 at 5; see Moreno-Espada v. United States, 666 F.3d
60, 65 (1st Cir. 2012) (determining that attorney’s failure to account for defendant’s potential
sentence exposure – whether objectively reasonable or not – does not satisfy Strickland’s
prejudice requirement); United States v. LaBonte, 70 F.3d 1396, 1413 (1st Cir. 1995), rev. on other
grounds, 520 U.S. 751, 117 S.Ct. 1673 (1997) (“An attorney's inaccurate prediction of his client's
probable sentence, standing alone, will not satisfy the prejudice prong of the ineffective
assistance test.”).
Furthermore, the record defies petitioner’s assertions regarding his knowledge of his
sentence exposure. Petitioner was made aware of his potential exposure of life imprisonment
before the start of trial. See Crim. No. 07-121 (ADC), ECF No. 2381 at 6. Petitioner was
present at a hearing prior to the commencement of trial wherein the Court discussed and gave
notice to all defendants facing trial, defendant among them, of the government’s intent to file
notices for enhanced penalties, under § 851, against six of the ten defendants who were
Civil No. 11-2262 (ADC)
Page 12
proceeding to trial. Id. at 3-4. Speaking directly to Rivera-Rodríguez, the Court informed him
that, “the mandatory will be increased once the notice is filed from a minimum of 10 years to
a minimum of 20 years with also an exposure of life imprisonment.” Id. at 6. RiveraRodríguez’s counsel even asked the Court to clarify for defendant the definition and scope of
life in prison. Id. at 8. The Court explained, “Life imprisonment in the Federal prison is
natural life. Which means you will not go out for the rest of your life.” Id.
The Court made clear that defendants may decide to “exercise[] [their] right to go to
trial knowing what are the pros and cons of exercising [their] right to trial or . . . consider[]
the possibility of entering into a plea agreement with the government in exchange of a plea
of guilty.” Id. at 7. The Court explained:
Of course you have the Constitutional right to go to trial, and to
be presumed innocent and it is the government that has the
burden of presenting evidence against you. But, the attorneys
have investigated this case and conducted discovery, and they
have had the time to discuss options with you and when I say
options I mean plea offers made by the government. I also
understand that probably those offers are not as good as you may
wish, but these type of cases are complex, these type of cases carry
very harsh penalties that the attorneys cannot change and that the
Court cannot change because that is what the law says.
Id. at 6. The Court then gave defendants and their attorneys ten minutes to discuss these
matters before the start of jury selection. Id. at 7. Petitioner fails to allege that his counsel
repeated any alleged misadvise after the Court’s warning that he faced exposure to life
Civil No. 11-2262 (ADC)
Page 13
imprisonment if convicted. As such, petitioner has failed to establish prejudice given that he
was made fully aware of his sentence exposure.
Without a showing of prejudice, Claim 5 fails; thus, the court ADOPTS the Magistrate
Judge’s recommendation as supplemented herein, and DENIES that claim.
C.
Supplemental § 2255 Motion6
Petitioner filed a supplemental § 2255 motion on July 31, 2013, in which he claims that
Alleyne v. United States, 133 S. Ct. 2151 (2013), should retroactively apply to his case. In
Alleyne, the Supreme Court held that “[f]acts that increase the mandatory minimum sentence
are . . . elements and must be submitted to the jury and found beyond a reasonable doubt.”
Alleyne, 133 S.Ct. at 2158. As an initial matter, Alleyne was decided on June 17, 2013.
Petitioner, meanwhile, was sentenced on February 27, 2008. Thus, contrary to petitioner’s
contention, it was not possible for this Court to have violated Alleyne in sentencing him as that
decision had not been handed down when he was sentenced. Moreover, for purposes of the
instant proceeding, the Supreme Court has not held Alleyne to be retroactively applicable on
collateral review. Jeanty v. Warden, FCI-Miami, ___ F.3d ___, 2014 WL 3411144, at *2 (11th Cir.
July 15, 2014); In re Mazzio, ___ F.3d ___, 2014 WL 2853722, at *2-3 (6th Cir. June 24, 2014);
United States v. Winkelman, 746 F.3d 134, 136 (3d Cir. 2014); In re Payne, 733 F.3d 1027, 1029-30
6
Even though the supplemental motion was filed after the one-year statute of limitations had
expired, and is also arguably successive, the Court will address whether Alleyne applies here.
Civil No. 11-2262 (ADC)
Page 14
(10th Cir. 2013); Simpson v. United States, 721 F.3d 875, 876 (7th Cir. 2013); In re Kemper, 735 F.3d
211, 212 (5th Cir. 2013); United States v. Redd, 735 F.3d 88, 91-92 (2d Cir. 2013). Thus, that
decision is not applicable here. See Tyler v. Cain, 533 U.S. 656, 663, 121 S.Ct. 2478, 2482 (2001)
(holding that a “a new rule is not ‘made retroactive to cases on collateral review’ unless the
Supreme Court holds it to be retroactive.”). As such, Alleyne offers petitioner no retroactive
relief under § 2255. In addition, the record clearly shows that defendant was advised of the
mandatory minimum sentence as charged and under the § 851 enhanced penalties.
III.
Certificate of Appealability
Pursuant to Rule 11(a) of the Rules Governing Section 2255 Proceedings, a “district
court must issue or deny a certificate of appealability (“COA”) when it enters a final order
adverse to the applicant.” To merit a COA, an applicant must make “a substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The applicant must demonstrate
that “reasonable jurists would find the district court’s assessment of the constitutional claims
debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595 (2000).
Here, because petitioner has failed to demonstrate a denial of his Sixth Amendment
right to effective assistance of counsel, the Court finds that petitioner is not entitled to a COA.
Therefore, a COA is DENIED.
Civil No. 11-2262 (ADC)
IV.
Page 15
Conclusion
For the reasons discussed herein, the § 2255 motion and supplemental motion (ECF
Nos. 1, 21) are DISMISSED WITH PREJUDICE. Petitioner is DENIED a COA. The Clerk
is instructed to enter judgment accordingly.
SO ORDERED.
At San Juan, Puerto Rico, this 10th day of March, 2015.
S/AIDA M. DELGADO-COLÓN
Chief United States District Judge
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